EagleTribune.com, North Andover, MA

August 15, 2013

Court throws out guilty verdict in Haverhill home invasion

Mistake by court officers leads to new trial for man convicted of Haverhill robbery

By Shawn Regan
sregan@eagletribune.com

---- — HAVERHILL — In 2007, Yubar Perez, then 22, of Worcester, was sentenced to 25 years in prison after he was convicted by a Lawrence Superior Court jury of breaking into a Park Street home, pointing a gun at a man and his 13-year-old son and stealing $23,000 in cash.

On the second day of Perez’s trial, his mother and older sister went to the courthouse and attempted to enter the courtroom during jury selection. They were denied entry, however, by a court officer who told them to take a seat in the hallway — a practice that until recent years was common at the Lawrence courthouse due to space limitations and as a matter of convenience and comfort for jurors and the public.

After Perez was sentenced, the trial judge, Howard Whitedhead, ruled that Perez’ Constitutional right to a public trial was violated because his relatives were not allowed into the courtroom.

An Aug. 8 ruling by state Appeals Court affirmed Whitehead’s decision to throw out the 2007 conviction and grant Perez a new trial on home invasion and armed robbery charges.

Stephen O’Connell, a spokesman for the Essex District Attorney’s Office, said Perez is currently in prison and that prosecutors “anticipate filing a request for further appellate review” of the case by the state Supreme Judicial Court. O’Connell declined further comment.

According to court papers, Perez was one of three men charged in connection with the Aug. 9, 2004 home invasion. The papers said Perez held a gun on the man and his son, while another man ran into the father’s bedroom and stole a briefcase containing the cash, which was from an insurance settlement.

Court paperwork said the victim was planning to buy an auto parts business with the money. Perez and the other men had learned about the cash from the victim’s daughter.

At the Appeals Court, Assistant Essex District Attorney Ronald DeRosa argued that banning Perez’s relatives from the courtroom during jury selection was “de minimis” — a Latin expression meaning trivial or about minimal things — because it involved “only two people for approximately one hour on the second day of a two-day jury empanelment.”

The Appeals Court disagreed. The justices ruled that denying a defendant the right to a public trial “is a structural error and not susceptible to harmless error.”

According to a summary of the case, Perez’ mother and sister waited outside the courtroom as 15 to 20 of 55 potential jurors were interviewed inside. After the jury was selected, there was also discussion of certain motions while the relatives were required to wait in the hallway. At one point, Perez’ lawyer left the courtroom to retrieve a suit from his client’s relatives.

“Although the defendant’s family could have stayed longer, they decided to leave following their conversation with the lawyer, considering that they could not enter the courtroom,” the Appeal Court summary said.

The ruling said the trial judge eventually learned that excluding the public from jury selection was, at the time, the practice of court officers in the Lawrence session of Superior Court.

“This was apparently done due to space restrictions and as a matter of convenience and comfort for both the venire (jury pool) and the public,” the Appeals Court ruling said. “Two court officers testified this was indeed the general practice from 2006 to 2008.”

At Perez’ 2007 trial, the jury deliberated for about 11 hours over three days before returning its guilty verdict, according to a news report in The Eagle-Tribune. Assistant District Attorney Marcia Slingerland was the original prosecutor.

Judge Whitehead imposed the sentence of 20 to 25 years for armed home invasion, and another 12- to 15-year sentence for armed robbery. The sentences were to be served a the same time.